CA Trust, Estate & Probate Litigation

CA Trust, Estate & Probate Litigation

Controlling Your California Trust Or Will Mediation–Part 1

Posted in Litigation, Mediation

Mediation Maze-2

The process of mediation.

Mediation is a process, a process you can use to reach a successful resolution in your case, but only if you understand how the process works. So many people fail to maximize what they can get out of their case by failing to understand the mediation process to begin with. You can literally snatch a win out of the mouth of defeat if you know how to use the mediation process to your advantage.

For starters, mediations are rather odd. In most mediations, you use a neutral party (a retired judge or a lawyer) to negotiate a settlement between the parties. The mediator goes back and forth between two rooms shuffling proposals and telling you how bad your case is until a settlement is produced (or not). It is important to understand that mediation is NOT a court process—meaning the mediator will not decide who is right and who is wrong. The mediator’s job is to settle the case, and that can only be accomplished by finding the point at which money will change hands in exchange for the case being dismissed. That’s all mediation comes down to… every time.

May people, lawyers included, mistake mediation for a time to lay out legal arguments. Some legal arguments are discussed in mediation, but they really are only minimally relevant. Cases don’t settle at mediation based on the law, they settle at mediation based on the payment of money. The more you focus on the negotiation, the better.

If you are the petitioner (the one suing) you want to get as much money as possible from the opposing party. If you are the respondent (defendant) you want to pay as little as possible. Where do the parties meet? That’s for the mediator to find out.

Step One: What’s it worth?

The first step to a good mediation is to determine, before you go into mediation, what your case is really worth. That can be hard to do from an objective viewpoint. But you have to ask yourself, how much will I get if I win my case completely. A complete win at trial is rare (really rare), but this will set your high-water mark for settlement. If the most you are ever going to get out of your case even with a complete win is $1 million, then you can’t ask for $2 million at mediation. That is not going to work.

Step Two: What’s it REALLY worth?

Next you have to discount the complete win number by the chance of loss. That is even harder to do. But an experienced lawyer who has tried cases like yours in the past can usually provide you with a solid assessment of your chances for success. You also have to take into account the nature of the assets you are suing for. Some assets look good on paper, but are not really worth much in reality. For example, unsecured loans to a “friend” of the decedent—the loan value may be $50,000, but if the chance of collecting is zero, then the note value is really zero.

Once you have the best number and the more realistic discounted number, you know what your range is for settlement. If the most I am ever going to win is $1 million, but my realistic chances of winning a trial is only 30%, then my range may be $300,000 to $1 million. This range will change depending on how strong the evidence is that I have collected so far. The weaker the evidence, the further down from $300,000 the settlement number must be adjusted.

Step Three: Sweat the small stuff.

Now comes the tricky part, the personal stuff. There may be any number of items, assets, personal things that you want out of your Trust or Will lawsuit. These items may not have much monetary value, but they have significant sentimental value. You want to be sure to include these items in your demand. Sometimes you can get much of what you want in this regard without paying much for it because the opposing party may not value personal property.

Once you have this all figured out, you are ready to attend mediation. That is where the process really begins. And that’s where our next post starts…


How To Handle Bad Trustees: Damages For Breach Of Trust

Posted in Trustee Breach of Trust, Trustees & Beneficiaries

Trustee_Time to Pay Up

When a California Trustee breaches his duties of Trust, there can be damages that must be repaid by the Trustee.  However, not every type of damage is available.  For example, there are no “pain and suffering” type damages in Trust and Will cases.  In this video, partner Keith Davidson discusses the finer points of Trust damages. For more information, click this link:

Quality Matters In California Trust And Will Contests

Posted in Litigation, Trust & Will Contests

Quality Matters!

When exactly did we lose sight of quality? In our fast paced world, we often expect things (1) cheaply, and (2) quickly. That works great for fast food and cheap electronics, but not so well for professional services. If you need a heart transplant do you want the cheapest, fastest surgeon? Or would you prefer someone who charges more because they have great expertise and they take their time?

Let’s be honest, legal work is expensive. And unlike your healthcare, there really is no good comprehensive insurance product that pays for a majority of the costs. Quality legal services costs more than the cheap and quick stuff. The problem is that it can be hard to discern quality in legal services. It’s not like buying a luxury car where you sit in the car and can see the quality for yourself.

Yet there is no doubt in my mind that quality matters in legal services. Many legal arguments are won or lost on the written motions. Even routine hearings can be done better with proper preparation beforehand. It takes time to provide quality services, but that investment can pay huge dividends in terms of the ultimate results.

Of course, you can do everything well and still lose. That’s the nature of our adversarial legal system.  Ultimately someone else makes the decision as to who wins and who loses; you have no control over that. The only thing you can control is the amount of energy and effort you put into your case. The higher the degree of quality, the more likely you are to succeed.

For most people, a Trust or Will lawsuit is a once-in-a-lifetime event where the family legacy is on the line.  That’s when quality counts the most.

How To Handle Bad Trustees: Removal and Suspension

Posted in Trustee Breach of Trust, Trustees & Beneficiaries

Trustee_ It's Time to Go!!!

Trustee removal is one of the hardest areas to litigate in California Probate court.  But if you have the right facts, then removal and suspension can be accomplished.  In this video, partner Stewart Albertson discusses the idea of Trustee removal and suspension. For more information, click this link:

Family Dysfunction Takes a Different Approach: Adapt And Modify

Posted in Litigation, Trust & Will Contests

Are you Serious!?!

When dealing with dysfunctional family relationships, you have to be ready to adapt and modify. In other words, be creative. Taking a hard stance and expecting others to “take it or leave it” is rarely a successful strategy when dealing with anybody—let alone dysfunctional relations.

While the typical Trust or Will lawsuit is rather complex, there are ways to get creative in nearly every case. Primarily because most people are not necessarily looking to get everything they say they want. What most people want more than anything is a symbolic win. Something that validates their position and provides a sign of respect for their relationship to the decedent. Don’t get me wrong, people want money too, but not every asset is created equal when it comes to family assets.

For example, tangible personal property, things like family heirlooms, photos, furniture, and keepsakes can be paramount in a party’s mind when fighting over an estate. Such items may seem petty or worthless to others, but the symbolic value of such property can carry a good deal of weight. And giving personal items to a party who cares about such things can go a long way to showing respect and providing a symbolic victory. Best of all, the victory can be given without any real loss of monetary value! Talk about a win-win situation.

This is just one example. There have been many times when we have been able to work out creative solutions. Another good example is giving a surviving spouse a life estate in real property—allowing them to live there until they either pass away or move into a care facility—and then allowing the children to obtain the property thereafter is a great strategy for giving the same property to two different people.

A creative solution may not always work, but getting creative increases the chances of finding common ground in litigated matters that otherwise would never be available to parties if they remained entrenched in their positions.

Family Dysfunction Takes a Different Approach: Documentation

Posted in Litigation, Trust & Will Contests

If you mean it, document it!

If you are dealing with a dysfunctional family relationship, there is going to be some misunderstandings along the way.  Dysfunctional relationships do better with proper documentation. You may have a hard time communicating with dysfunctional family members, but the written word is much harder to refute than a game of he-said, she-said. In fact, the more specific the documentation you have, the better. And a document has the added benefit of allowing people to consider what is being proposed at their own speed, on their own time, and in their own way. We all take in information in a different fashion after all.

Many parents make the mistake of not documenting their thoughts and plans in the first place. If you have children that do not get along, do yourself (and your children) a favor and document what you want. Whatever you do, do NOT make one of your children the Trustee. Even if that one child is the most honest person in the world, the fact that they are one of your children is enough to create a potential fight.

Might I propose naming a neutral third party as Trustee. Preferably a corporate Trustee or a private, professional Trustee. Or at least provide a mechanism that allows a neutral third party to take over in the event there is a fight among the children.

All this is to say that the better you document your desires and wishes, the more likely you are to avoid a mess in the future. When you do document your desires and wishes, think not just of the perfect world you wish existed. But rather, think of how things might go wrong (and with dysfunctional relationships they often do go wrong).

How To Handle Bad Trustees: Accountings

Posted in Trustee Breach of Trust, Trustee Removal, Trustees & Beneficiaries

Does your Trust Accounting...

As a beneficiary of a California Trust, you have the right to information and a full and complete Trust accounting.  So often, however, this information is never provided to the Trust beneficiaries.  When that happens, it is up to you to force the Trustee to account.  And once you are in Court, you can issue subpoenas to obtain all the back-up information necessary to double check the Trustee’s numbers.

Family Dysfunction Takes a Different Approach: Communication

Posted in Litigation, Trust & Will Contests

I Hate to Communicate...

The problem underlying many Trust and Will disputes is bad family dynamics and dysfunctional family relationships. People just do not get along. And where there’s dysfunctional relationships, there’s misunderstandings galore.

If you are dealing with a dysfunctional relationship, you have to take a different approach. That approach begins with communication–easier said than done, I know. I didn’t say dealing with dysfunctional relationships would be easy. If it were easy, you’d already be doing it. But it also is not impossible. Here’s a few thoughts on communication:

  1. Cut out the middle men (or women). Oftentimes miscommunication begins with third parties who claim to have heard someone say something about you or about the situation in which you find yourself. Maybe the third person is right, maybe they are wrong; but when gossip is taken as truth, it causes the basis for bad feelings. And those feelings can be hard to address because the other party may have no idea what the problem is to begin with. If you want to know for certain what someone is saying, then ask them about it.
  2. Put the past aside, at least for a little while. We all have done things we later regret. Sometimes the fight people are having now is just a proxy for the actions they took many years ago. How do you even begin to address past insults? Well that’s what therapists are for, not lawyers. But I can tell you from personal experience that sometimes you just have to forgive and forget…or at least forget. Do you really want to spend all your time, money and emotional energy fighting with a family member over a past insult? If you have a current beef with someone, fair enough. But past wrongs should be left in the past.
  3. Let’s focus on facts. Past wrongs make terrible arguments for current lawsuits. Many times people want to dredge up wrongs from years ago to try and support their current legal position. It simply does not work. There is no judge in the State who wants to hear about what someone did 20 years ago and how that affects the current distribution of an estate. If you are going to bring a legal claim in court, then focus on the facts at hand—the facts that prove your case NOW…not in the distant past.
  4. Over inform. If you are a Trustee dealing with a dysfunctional family member do yourself a big favor and over inform them of the Trust activity. Nothing breeds suspicion and fear more than under informing Trust beneficiaries. Especially where you withhold bank account information, income information, or current investment information. If you have the info, give it out.

Not every difficult situation can be solved with good communication, especially if the opposing party refuses to communicate. But shifting your approach and communicating from a different angle can make a difference. If nothing else, you will make yourself look like the reasonable one in front of the Court; and sometimes that is half the battle.

How to Handle Bad Trustees: Improper Investing

Posted in Trustee Breach of Trust, Trustee Removal, Trustees & Beneficiaries

Bad Trustees = Bad Investing!!!

Trustees have a staggering number of duties and obligations when it comes to investing California Trust assets.  The California Uniform Prudent Investor Act outlines these duties, many of which are simply not followed by individual Trustees.  In this video, partner Stewart Albertson discusses the duties of Trust investing for California Trustees.

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